T.H. v. Department of Children & Families ( 2017 )

Third District Court of Appeal
State of Florida
Opinion filed July 12, 2017.
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No. 3D17-727
Lower Tribunal No. 14-16359
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T.H., the Father,
Appellant,
vs.
Department of Children and Families, et al.,
Appellees.
An appeal from the Circuit Court for Miami-Dade County, Mavel Ruiz,
Judge.
Law Offices of Roger Ally, P.A., and Roger Ally, for appellant.
Karla Perkins, for appellee Deparment of Children and Families; Laura J.
Lee (Sanford), for appellee Guardian ad Litem Program.
Before LOGUE, SCALES, and LINDSEY, JJ.
LOGUE, J.
ON CONFESSION OF ERROR
T.H., the Father, appeals a final judgment terminating his parental rights.
The trial court entered an implied consent against T.H. when he failed to appear at
a January 27, 2017 adjudicatory hearing. The Department and guardian ad litem
concede that this court should reverse and remand for a hearing on the
Department’s petition to terminate the Father’s parental rights. We agree.
In November 2016, the Department filed a petition alleging several grounds
to terminate the parental rights of both the Father and Mother. At the outset of the
January 2017 trial on the Department’s petition as to both parents, the Department
moved for a continuance. The Mother joined in the request for continuance, and
the trial court granted the motions. After the continuance was granted, the
Department asked the trial court to enter a default against the Father because the
Father had notice of the hearing but failed to appear. The trial court entered an
implied consent against the Father. The Father later filed a motion to vacate the
implied consent which was heard by the trial court in March 2017.
At the March hearing on the Father’s motion to vacate, the Father testified
that he had been hospitalized on the day of the January hearing. Nevertheless, the
trial court concluded that the Father failed to present a meritorious defense and it
denied the Father’s motion. This appeal followed.
Section 39.801(3)(d), Florida Statutes (2016), authorizes constructive or
implied consent in termination cases, but “courts should ordinarily refrain from
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determining a termination of parental rights by default when an absent parent
makes a reasonable effort to be present at a hearing but is prevented or delayed by
circumstances beyond the parent’s control.” T.L.D. v. Dep’t of Children & Family
Servs., 883 So. 2d 910, 914-15 (Fla. 2d DCA 2004). Indeed, “Florida public
policy favors an adjudication on the merits over the entry of a default, and thus a
properly filed motion to vacate a consent by default should be liberally granted.”
Id. at 915. Such public policy “is particularly implicated in cases involving a
parent’s fundamental right to the care, custody, and control of a child.” Id.In ruling on a motion to vacate a default termination of parental rights, a trial
court must determine whether the movant acted with due diligence, demonstrated
excusable neglect, and demonstrated the existence of a meritorious defense. Id. at
914; see also E.S. v. Dep’t of Children & Family Servs., 878 So. 2d 493, 496 (Fla.
3d DCA 2004).
Here, the trial court concluded that the motion to vacate must be denied
because the Father failed to present a meritorious defense. But based on the
unique circumstances of this case, where the Department asked for a continuance
of the adjudicatory hearing, the Father was hospitalized at the time of the hearing,
and the Father presented argument as to each ground for termination, we conclude
that the trial court erred in denying the motion to vacate.
Reversed and remanded.
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